On James E. Fleming's Fidelity to Our Imperfect Constitution: Intelligent or Unintelligent Fidelity?
23 Pages Posted: 4 Apr 2016
Date Written: March 23, 2016
In this paper the author elaborates a commentary on James E. Fleming’s Fidelity to Our Imperfect Constitution. For Moral Readings and Against Originalisms, and concurs with those who claim that with its publication he pick ups the torch laid down by the late Ronald Dworkin as the current most representative advocate of a moral reading of a constitution. For that purpose he reassess Ronald Dworkin’s “moral reading”; reevaluates Fleming’s argument both “for moral readings and against originalisms”, which can be characterized as “fidelity to our imperfect constitution”, and which has implicit three very helpful dichotomies to distinguish moral readings from both originalisms and living constitutionalisms: (1) fidelity and anti-fidelity; (2) interpretation and non-interpretation aka (re)construction, (re)invention and (judicial) legislation; and (3) perfection-imperfection; and, finally, makes explicit his conclusions, by emphasizing the kind of intelligent fidelity that moral readers and everyone else has to and must adopt.
Keywords: Constitution, Constitutional Interpretation, Fidelity, Moral Reading(s), Living Constitutionalism(s), Originalism(s), James E. Fleming, Ronald Dworkin
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